The Witness: Four feet, yes.
Id. at 384-85.
On recross-examination, defense counsel again asked Funderburk to read to herself the statement of March 20, 1986, which she had made immediately after the accident. Defendant's counsel asked whether Funderburk had written the statement based upon what she had observed at the accident. She replied, "I wrote the statement after I was brought down to show them where the body were [sic] where I saw her jump."
On reredirect, plaintiffs' counsel asked Funderburk whether she (Funderburk) was "about four feet away screaming at that point in time when [the train] hit [decedent]." Funderburk stated, "I was, yes, I was four feet away." Confronted with the testimony of Moore, Thompson and Funderburk, the jury was unable to reach a unanimous verdict after extended deliberations. On December 18, 1992, I declared a mistrial.
A second trial was scheduled to commence on September 17, 1993. At that time, a case was pending in the Court of Appeals involving the question of the proper elements of the "last clear chance" doctrine. Belton v. Washington Metro. Area Transit Auth., 20 F.3d 1197. At the request of defendant and with the consent of plaintiffs, the second trial was continued pending a decision in Belton, The Court of Appeals decided Belton on April 22, 1994. Belton v. Washington Metro. Area Transit Auth., 305 U.S. App. D.C. 333, 20 F.3d 1197 (D.C. Cir. 1994). Based on Belton, defendant now moves for summary judgment for the third time.
The Belton decision effectively embraced the Andrews ruling that the first element of the "last clear chance" doctrine is that the plaintiff's initial position of danger be caused by the negligence of both plaintiff and defendant. The Belton Court thereby rejected the Johnson precedent with the observation that "the D.C. Court of Appeals' later decision in [ Robinson v. District of Columbia, 580 A.2d 1255 (D.C. 1990)]. . . restated the District's adherence to the requirement, undermining whatever force Johnson might have as an interpretation of D.C. law." Belton, 20 F.3d at 1200. Belton further confirmed that it is the law as articulated by District of Columbia courts that determines what that requirement means. Id.
A reasonable trier of fact, applying Belton and District of Columbia precedents, could find that plaintiffs' claim, that Dixon failed to stop the train in time due to the influence of illegal drugs, satisfies this requirement. For example, plaintiffs may be able to show that Dixon came under the influence of drugs, and that defendant negligently allowed him to operate the train before decedent placed herself in danger by jumping onto the track. On this theory of the facts, a trier of fact could conclude that decedent "was in a position of danger caused by the negligence of both [plaintiffs' decedent] and defendant," and thus, the District of Columbia's "last clear chance" doctrine, as stated in Belton, could come into play.
However, even if plaintiffs established such negligence on defendant's part, an issue would remain as to whether that negligence was a proximate cause of decedent's death. For the evidence may show that even a drug-free train operator could not have stopped the train in time to avoid the accident. But the issue of proximate cause is material and factual, and the mandate in this case requires its trial.
Defendant further argues that the last clear chance doctrine is not applicable to an assumption of risk defense, but rather is only applicable to a contributory negligence defense. Since it has already been determined not only that decedent was contributorily negligent but also that she assumed the risk, see Johnson v. Washington Metro, Area Transit Auth., 764 F. Supp. 1568, 1571 (D.D.C. 1991), defendant argues that summary judgment should be granted even if plaintiffs could establish that defendant had the last clear chance to avoid the fatal injury suffered by the decedent.
Whether the last clear chance doctrine can bar an assumption of risk defense appears to be a question of first impression in the District of Columbia.
In fact, there appear to be very few cases in other jurisdictions that directly address the issue. Defendant has cited to a California case for the proposition that the "last clear chance" doctrine does not apply to an assumption of risk defense. See Boyles v. Hamilton, 235 Cal. App. 2d 492, 45 Cal. Rptr. 399, 404 (Cal. Dist. Ct. App. 1965). By contrast a Louisiana court has explicitly applied the "last clear chance" doctrine to trump an assumption of risk defense. See Litton v. Travelers Ins. Co., 88 F. Supp. 76, 83 (W.D. La. 1950). Neither Boyles nor Litton provide a careful analysis of the issue.
The lack of authority on this question may be due partly to the ever-present confusion surrounding the terms "assumption of risk" and "last clear chance." "Assumption of risk" is a confused term because it is used to mean many different things. The Restatement, for example, lists four different meanings. Restatement (Second) of Torts § 496A, comment c (See Appendix attached hereto).
The defense of "assumption of risk" is ordinarily available to a defendant when a plaintiff voluntarily incurs a known risk. District of Columbia v. Mitchell, 533 A.2d 629, 639 (D.C. 1987). Ordinarily, this means a voluntary exposure to a reasonable risk, such as the risk taken by a spectator who enters a baseball park. The spectator "may be regarded as consenting that the players may proceed with the game without taking precautions to protect him from being hit by the ball." Restatement (Second) of Torts § 496A, comment c.
This meaning of "assumption of risk" contrasts with the defense of "contributory negligence." "Contributory negligence" does not require actual knowledge of any danger, and hence does not ordinarily involve voluntariness. See Queen v. Washington Metro. Area Transit Auth., 268 U.S. App. D.C. 480, 842 F.2d 476, 478 (D.C. Cir. 1988). It simply requires unreasonable conduct on the part of the plaintiff.
There is, however, a hybrid concept that melds "assumption of risk" with "contributory negligence," a voluntary exposure to an unreasonable risk. See Scoggins v. Jude, 419 A.2d 999, 1004 (D.C. 1980). It is in this sense that decedent here "assumed the risk" when she jumped in front of an oncoming train. See Memorandum of February 5, 1988, at 19 (decedent "unreasonably and voluntarily encountered a known risk").
Following the Restatement, see Restatement (Second) of Torts § 496A, comment c, P 4, the District of Columbia courts have "classified this hybrid. . . as a type of contributory negligence," and explicitly subsume the analysis of this type of circumstance under "contributory negligence." See Mitchell, 533 A.2d at 639. While this case presents facts that differ slightly from cases involving an ordinary contributory negligence defense, District of Columbia cases say that this "concept of 'assumption of risk' overlaps with contributory negligence and amounts to the same defense." Janifer v. Jandebeur, 551 A.2d 1351, 1352 (D.C. 1989) (citing Scoggins, 419 A.2d at 1004-05). It would seem to follow, therefore, that in this jurisdiction a plaintiff who voluntarily assumes an unreasonable risk, like a contributorily negligent plaintiff, could prevail by showing that defendant had the last clear chance to avoid, for example, a fatal collision.
Moreover, the only additional element involved in finding that decedent "assumed the risk" (rather than simply acted in a contributory negligent manner) in this case is the voluntariness of decedent's actions. That voluntariness arose from her attempt to commit suicide. Defendant's argument that the last clear chance doctrine is inapplicable to an assumption of risk defense in this case would thus necessarily imply that there is a suicide exception to the last clear chance doctrine. But, as noted above, the Johnson court explicitly rejected that exception, and this aspect of its ruling is undisturbed. See supra page 2.
Furthermore, subsequent to the initial determination that decedent legally "assumed the risk" by jumping off the platform, the Court of Appeals reversed and remanded this case without upsetting the legal determination that she had "assumed the risk." Johnson v. Washington Metro. Area Transit Auth., 280 U.S. App. D.C. 53, 883 F.2d 125, 128 (D.C. Cir. 1989). If a finding that decedent assumed the risk had precluded consideration of the last clear chance doctrine, the Court of Appeals presumably would not have remanded, but would have affirmed the initial grant of summary judgment on the ground that decedent assumed the risk, so that plaintiffs could not recover irrespective of who had the last clear chance to avoid the ultimate impact.
There remains another possible issue: whether the dispute about material facts discovered by the Court of Appeals when it reversed the first grant of summary judgment was resolved, or resolvable, in the live testimony adduced at trial which resulted in a mistrial, i.e. whether anyone, drugged or drug-free, could have stopped the train before it struck decedent. The parties' post-trial briefs and transcript references persuade me that at least a preponderance of evidence establishes that no one could have stopped the train in time to save the decedent. But substantially the same evidence, buttressed by the trial testimony of Jo Ann Mary Funderburk, about the time available to the train operator to stop the train that persuaded the Court of Appeals to reverse the first summary judgment remains. Johnson v. Washington Metro. Area Transit Auth., 280 U.S. App. D.C. 53, 883 F.2d 125, 128-29 (D.C. Cir. 1989). That evidence precludes granting of the defendant's renewed motion. That issue must again go to the jury guided by instructions to be framed in accordance with this opinion and appellate guidance.
Accordingly, it is this 15th of November, 1994, hereby
ORDERED: that defendant's Third Motion for Summary Judgment should be, and is hereby, DENIED; and it is further
ORDERED: that a pretrial conference will be held on January 13, 1995 at 10:00 a.m. in Courtroom No. 3.; and it is further
ORDERED: that a jury trial will commence on January 18, 1995 at 10:00 a.m. in Courtroom No. 3 for five days.
Louis F. Oberdorfer
UNITED STATES DISTRICT JUDGE
Restatement (Second) of Torts § 496A, comment c.
c. Meanings of assumption of risk. "Assumption of risk" is a term which has been surrounded by much confusion, because it has been used by the courts in at least four different senses, and the distinctions seldom have been made clear. These meanings are as follows:
1. In its simplest form, assumption of risk means that the plaintiff has given his express consent to relieve the defendant of an obligation to exercise care for his protection, and agrees to take his chances as to injury from a known or possible risk. The result is that the defendant, who would otherwise be under a duty to exercise such care, is relieved of that responsibility, and is no longer under any duty to protect the plaintiff. As to such express assumption of risk, see § 496B.
2. A second, and closely related, meaning is that the plaintiff has entered voluntarily into some relation with the defendant which he knows to involve the risk, and so is regarded as tacitly or impliedly agreeing to relieve the defendant of responsibility, and to take his own chances. Thus a spectator entering a baseball park may be regarded as consenting that the players may proceed with the game without taking precautions to protect him from being hit by the ball. Again the legal result is that the defendant is relieved of his duty to the plaintiff. As to such implied assumption of risk, see § 496C.
3. In a third type of situation the plaintiff, aware of a risk created by the negligence of the defendant, proceeds or continues voluntarily to encounter it. For example, an independent contractor who finds that he has been furnished by his employer with a machine which is in dangerous condition, and that the employer, after notice, has failed to repair it or to substitute another, may continue to work with the machine. He may not be negligent in doing so, since his decision may be an entirely reasonable one, because the risk is relatively slight in comparison with the utility of his own conduct; and he may even act with unusual caution because he is aware of the danger. The same policy of the common law which denies recovery to one who expressly consents to accept a risk will, however, prevent his recovery in such a case. As to such implied assumption of risk, see § 496C. As to the necessity that the plaintiff's conduct be voluntary, see § 496E.
4. To be distinguished from these three situations is the fourth, in which the plaintiff's conduct in voluntarily encountering a known risk is itself unreasonable, and amounts to contributory negligence. There is thus negligence on the part of both plaintiff and defendant; and the plaintiff is barred from recovery, not only by implied consent to accept the risk, but also by the policy of the law which refuses to allow him to impose upon the defendant a loss for which his own negligence was in part responsible. (See § 467.)